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Velasco Padilla v. Troxell

United States Court of Appeals, Fourth Circuit

March 8, 2017

XOCHITL JAZMIN VELASCO PADILLA, Petitioner - Appellant,
v.
JOE RICHARD TROXELL, Respondent - Appellee.

          Argued: January 24, 2017

         Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:16-cv-00024-JLK)

         Affirmed

          ARGUED: Kelly Ann Powers, MILES & STOCKBRIDGE P.C., Washington, D.C., for Appellant.

          Christopher George Michel, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellee.

          ON BRIEF: Stephen J. Cullen, Leah M. Hauser, Rachel N. Mech, MILES & STOCKBRIDGE P.C., Washington, D.C., for Appellant.

          Erin E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellee.

          Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.

          Judge Duncan wrote the opinion, in which Judge Motz and Judge Harris joined.

          DUNCAN, Circuit Judge

         Petitioner-Appellant Xochitl Jazmin Velasco Padilla ("Petitioner") appeals the district court's denial of her petition for the return of her now five-year-old child J.V. ("Child"), after Respondent-Appellee Joe Richard Troxell ("Respondent") took Child to the United States. Petitioner filed her petition under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), Oct. 25, 1980, T.I.A.S. No. 11, 670, 19 I.L.M. 1501, as implemented by the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq. The district court denied the petition, finding that Petitioner had established that Child was wrongfully removed but that Respondent had adequately shown at least one defense under the Hague Convention --that is, that Petitioner had consented to Child's removal from Mexico. For the reasons that follow, we affirm.

         I.

         A.

         1.

         Petitioner gave birth to Child on May 27, 2011 in the state of Oaxaca, Mexico. Child's biological father is unconfirmed. However, the parties believe Respondent is the paternal grandfather. Respondent--a U.S. citizen residing in Mexico at the time--offered to provide support for Child. In January 2012, when Child was about eight months old, Petitioner and Respondent agreed that Respondent would serve as Child's legal father. Accordingly, Respondent registered himself as Child's father, and his name appears on the birth certificate. As stipulated by the parties, Respondent is the legal father and has parental rights under Mexican law.[1]

         For the first two years of Child's life, although Respondent had little to no physical contact with Child, he did provide financial support. On December 17, 2014, Petitioner and Respondent traveled to Oaxaca to obtain a Mexican passport for Child. After they obtained Child's passport together, Respondent took Child to his home in Acapulco until Child entered the United States.

         The parties' descriptions of the circumstances under which Child entered the United States vary dramatically. Although the district court was to find Petitioner's version of events not credible, we nevertheless set out both versions for the sake of comprehensiveness.

         2.

         According to Respondent, Child spent his first two years not with Petitioner, but primarily in Petitioner's mother's care. In early 2014, Petitioner's mother called Respondent and stated that Child wanted to see Respondent. Respondent and his then-fiancée, now-wife Blanca Leyva ("Ms. Leyva") picked up Petitioner's mother and Child from the bus station, and they stayed at Respondent's home in Acapulco for several days. During the visit, Petitioner's mother said she wanted help bringing Child to the United States and that Child would require a passport and visa to enter the country. Respondent was planning to move to the United States, both to marry Ms. Leyva and to undergo surgery. He obtained a "fiancée visa" authorizing Ms. Leyva to enter the country to get married, and he told Petitioner's mother that he would also apply for a passport for Child. After this visit, Respondent began preparing for the move. When Respondent informed Petitioner's mother that Child's passport would require Petitioner's signature, she confessed, "I don't know where [Petitioner] is." App. 578. Eventually, a friend helped Petitioner's mother locate Petitioner in Zaachila, a town six hours north near the city of Oaxaca. In early December, Respondent and Ms. Leyva traveled to Rio Grande to pick up Child from Petitioner's mother, then to Zaachila to pick up Petitioner, and finally to the passport office in the city of Oaxaca.

         On December 17, 2014, Petitioner, Respondent, and Child--as well as Petitioner's half-sister, Maria Luisa Banos Castillo ("Ms. Banos"), and her children--went to the passport office. Petitioner and Respondent jointly signed for Child's passport, which they received later that day. The entire group stayed the night at the house where Petitioner was living. The next day, December 18, the group celebrated Ms. Leyva's birthday. On the morning of December 19, Respondent and Ms. Leyva returned with Child to Respondent's home in Acapulco, where they resided until leaving for the United States.

         Respondent testified that Petitioner never told him that she wanted him to bring Child into the United States illegally without her. However, according to Respondent, during the visit to obtain Child's passport, Petitioner "agreed to sign over custody" to Respondent, App. 583, because she believed he would be able to get Child on the "right track, " App. 584. Ms. Leyva later testified that Respondent and Petitioner specifically discussed taking Child to the United States so that Child could "have a better life." App. 635. Although Ms. Leyva stated "there was no plan, " the prospect of moving to a U.S. city "was always on the table" between the parties. App. 634; see also App. 635.

         3.

         For her part, Petitioner contended that during Child's first two years she had only been separated from Child for six weeks. Petitioner stated that she went to get a passport for Child because Respondent offered to "get papers for me and my child, " so that "perhaps I could have a vacation" in the United States with Child.[2] App. 536. According to Petitioner, Respondent took Child without her knowledge and consent. She stated that on the day ...


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